In Depth

A jury instruction the Indiana Court of Appeals found to incorrectly state the law required the court to remand for a new
trial on damages in a negligence suit.

The Court of Appeals reversed the $12,500 jury award of damages to Patricia Buhring in her negligence suit against Phillip
Tavoletti. Buhring sued Tavoletti following a car accident in which he hit her. She delayed getting medical treatment because
she thought she only had minor injuries, but her pain increased over time. She sought medical treatment a month after the
accident and had to continue treatment and medical visits as a result of her injuries.

At issue in Patricia E. Buhring v. Phillip V. Tavoletti, No. 45A03-0810-CV-511, is whether the trial court
erred when it instructed the jury regarding mitigation and damages. The Court of Appeals determined Tavoletti failed to produce
enough evidence of causation to support the giving of the mitigation of damages instruction. Tavoletti argued that Buhring
failed to get treatment recommended by her doctor and her delay could have prolonged her injury or prevented healing. He relied
on testimony during cross-examination of Buhring's doctor to support his argument.

But Buhring's doctor testified that not everyone's bodies respond to accidents the same way and sometimes people
don't feel the effects of an accident until a week later, wrote Judge Elaine Brown. The doctor's cross-examination
testimony doesn't establish that Buhring should have received earlier treatment, nor did Tavoletti show Buhring's
actions caused her to suffer a discrete, identifiable harm arising from her failure to receive earlier treatment, and not
arising from his acts alone, she wrote.

The appellate court also found the damages instruction to the jury was at best, misleading, and at worst, an incorrect statement
of the law. The jury instruction said, "Damages are designed to compensate an injured person for any damages sustained
by her as a direct and proximate result of the negligence of another, and to place an injured person in the same financial
position in which she would have been had the negligence not occurred." Placing an injured person in the same financial
position isn't a pattern instruction, as the trial court indicated in the instruction, nor is it applicable in a negligence
claim. The second half the jury instruction is misleading because it doesn't take into account Buhring's pain and
suffering, wrote the judge.

Cases such as Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 941 (Ind. Ct. App. 1994), held an injured
person in tort actions should be placed in the same financial position as if the tort hadn't occurred. The appellate
court noted that was a concept that has been criticized and is subject to substantial limitations, wrote Judge Brown.

The Court of Appeals remanded for a new trial on damages because the instruction at issue wasn't a harmless error.

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